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Or.22 , rule 3 and 4 not applies and Or.22 ,Rule 10 applies - no abatement - when the defendant died after passing of the preliminary decree - it is not necessary to bring his legal heirs by filing petition- add them in the final decree petition as one of the respondents under or.22, rule 10 C.P.C.as is enough = Ausali Siddiramulu (Died per LR's) and others...Petitioners/ Petitioners Ausali Dubbaiah, S/o.Sheshaiah (Died per LR.s)and others ...Respondents/Respondents = published in http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=10560

Or.22 , rule 3 and 4 not applies and Or.22 ,Rule 10 applies - no abatement - when the defendant died after passing of the preliminary decree - it is not necessary to bring his legal heirs by filing petition- add them in the final decree petition as one of the respondents under or.22, rule 10 C.P.C.as is enough =The petitioners filed I.A.493/2003 under Order XX Rule 18 CPC on 07.08.2003for appointment of a Commissioner for submitting a report so that a final decreecan be passed in the suit. Since the respondent no.s 4-6 had died and theirlegal representatives would also have to be given notice in the final decreepetition I.A.493/2003, they also sought for condonation of delay of 1053 days inbringing their legal representatives on record, to set aside the abatementcaused by their death and to bring them on record as legal representatives ofthe deceased respondent no.s 4-6/defendant no.s 4-6. In the arrayof parties, all the legal representatives of respondents 4-6 were alsoindicated. =When parties to a suit die, under Order XXII Rule10A of CPC, it is incumbent on the counsel appearing for that party to furnishdetails of the date of death and the details of the legal representatives alongwith their addresses to the plaintiff in the suit (See Gangadhar v.Rajkumar1).It has to be seen as towhat provision is applicable when O.22 Rules 1, 3 and 4 are not applicable incase of death of parties during the final decree proceedings.7. Order 22 Rule 10 CPC lays down that in cases of an assignment, creation ordevolution of any interest other than the cases referred to in remaining Rulesof or.22, the suit may by leave of the Court, be continued by or against theperson to or upon whom such interest has come or devolved.When Or.22 Rules 3or 4 is not applicable in cases of death during the final decree proceedings,one has to invoke Or.22 Rule 10 CPC to bring the L.Rs. on recordIn T. Mangaraju v. K. Ganamma6, this Court held :"Once preliminary decree is passed it cannot be said that the cause of actiondies along with the person nor dies it require that the LRs. should claim thecause of action by being brought on record within the period of limitationprescribed. In other words on account of the passing of the preliminary decreethe right stands recognised by the Court. All that is required is that thefinal decree proceedings should be taken up at the instance of the partyclaiming and in that view there is no question of any abatement nor does itrequire that the abatement be set aside. The provision of Order 22 Rule 3 and 4does not apply to a case where the holders dies after passing a preliminarydecree."(emphasis supplied)In Valluri Sambasivarao v. Motamari Veeraiah Gupta7, this Court reiterated :"22. ... ... ... it is clear that by passing of preliminary decree, the rightsof the parties stand recognized and determined by the Court and the only thingthat is left is passing of the final decree. Therefore after passing of apreliminary decree if the plaintiff dies, since no final decree can be passed ona dead person, it is essential to permit his legal representatives to come onrecord. Hence, after such determination and recognition of rights, if theplaintiff dies, there is no question of any abatement and the suit cannot bedismissed on the ground of abatement, after passing of a preliminary decree,except in an appeal or in a revision." (emphasis supplied)In view of the above legal position, I am of the opinion that Order XXIIRule 3 and 4 have no application to the present case as preliminary decree inthe suit was passed in 1984 and the death of respondent Nos.4, 5 and 6 tookplace subsequently in 1997, 1999 and 2001, respectively. Thus there can be noabatement of the suit on account of the death of the defendants 4-6 afterpassing of the preliminary decree. So there was no necessity for the petitionersto file petitions for condonation of delay in seeking to set aside abatement andto set aside abatement. So the order of the court below holding that they shouldhave filed such applications and explained day to day delay in respect of eachof the deceased defendants is contrary to law and unsustainable. It is most unfortunate that the trial court ignored the settled legalposition and dismissed the I.A 493/2003 for passing final decree on untenablegrounds and in a perverse manner. Such orders are likely to cause the parties tolose faith in the institution of Judiciary itself.25. Even the conduct of the 3rd respondent is to be deprecated. Admittedly sheis not the legal heir of any of the deceased respondents and is not prejudicedin any manner, if the petitions for condonation of delay in filing theapplications to set aside abatement and to set aside the abatement (assuming forthe sake of argument that as per law they should be filed), are not filed bypetitioners. By raising these untenable technical pleas she has managed to enjoythe plaint schedule properties from 1984 till this day.26. Therefore, the impugned order dt.29.12.2005 in IA.No.493 of 2003 inOS.No.02 of 1984 passed by the Court of Senior Civil Judge, Medak, Medak District is set aside. IA.No.493 of 2003 is restored to the file of the Sr.Civil Judge, Medak. The said court shall issue notices to all the respondentsand take steps to do the needful to pass a final decree in the suit. The CivilRevision Petition No.4557 of 2007 is allowed with costs of Rs.5000/- to be paidby 3rd respondent to petitioners.27. Miscellaneous applications pending, if any, shall stand closed.

ORAL ORDER :
1. This Revision is filed challenging the order dt.29.12.2005 in IA.No.493 of
2003 in OS.No.2 of 1984 on the file of the Court of the Sr. Civil Judge, Medak,
Medak District.
2. The petitioners are the legal representatives of one Siddiramulu, who was
the plaintiff in the above suit. He filed the said suit for partition of the
plaint schedule properties and for recovery of possession of his half share
therein. Siddiramulu died pending suit and his wife and children were brought
on record. A preliminary decree of partition was passed in the suit on28.09.1984.
3. Challenging the said decree, Respondent Nos.1 to 6 herein filed AS.No.25 of
1984 before the District Judge, Medak. The said appeal was dismissed on13.11.1987.
4. The 3rd respondent herein filed SA.No.174 of 1998 in this Court challengingthe same. On 18.09.2000 the said Second Appeal was also dismissed.
5. It appears that one Reddi Lachaiah, who is the 4th respondent/4th defendantin the suit, died in the year 2001 leaving behind respondent Nos.17 and 18 ashis legal heirs. Likewise, Raja Timmaiah, the 5th respondent/5th defendant alsodied in 1999 leaving behind the 16th respondent as his legal heir. The 6threspondent/ 6th defendant in the suit, also died leaving behind the 14threspondent as his legal heir.
6. The petitioners filed I.A.493/2003 under Order XX Rule 18 CPC on 07.08.2003for appointment of a Commissioner for submitting a report so that a final decreecan be passed in the suit. Since the respondent no.s 4-6 had died and theirlegal representatives would also have to be given notice in the final decreepetition I.A.493/2003, they also sought for condonation of delay of 1053 days inbringing their legal representatives on record, to set aside the abatementcaused by their death and to bring them on record as legal representatives ofthe deceased respondent no.s 4-6/defendant no.s 4-6. In the array of parties, all the legal representatives of respondents 4-6 were alsoindicated.
7. The 3rd respondent filed a counter opposing the said application contendingthat the application is vague and vexatious and there is no specific prayer inthe petition;
that specific dates of the death of the deceased were not given;
that the petitioners ought to explain the delay in respect of the each of the
deceased; they also ought to file separate petitions in respect of each of the
respondent no.s4-6, for condonation of delay in seeking to set aside abatement,
to set aside abatement and to bring on record the legal representatives.
It is
also stated that pending Second Appeal before the High Court, the death of these
persons was not reported, and therefore, the 3rd respondent could not take steps
to bring them on record in the Second Appeal which she had filed.
8.By order dt.29.12.2005, the Court below dismissed the said I.A. In the saidorder, the trial court noted that the petitioner did not add the legalrepresentatives of the deceased in SA.No.174 of 1998 which had been disposed ofon 18.09.2000; that the petitioners did not give even the date of the deaths ofthe deceased respondents; the delay is not properly explained; and there werelatches on the part of the petitioners.
9. Aggrieved thereby, the present Revision is filed.
10. Heard the counsel for petitioners and the counsel for 3rd respondent.
11. Respondent Nos.1, 2, 4 to 6 have died. Respondent Nos.7, 11 and 14 refusedto receive the notices sent by Court and therefore, they are deemed to beserved. Respondent Nos.8 to 10 and 17 were served but none appears on theirbehalf.
12. The counsel for the petitioners contended that the reasoning of the Trial
Court is perverse; when SA.No.174 of 1998 was filed in this court by 3rd
respondent/3rd defendant, the trial court ought not have blamed the petitioners
for not bringing to the notice of this Court, the death of these persons or for
not bringing their legal representatives on record in the Second Appeal; thatunder Order XXII Rule 10A of CPC, it was incumbent on the counsel who appearedfor the deceased parties in the suit to give information about the date of deathand the details of legal representatives of the deceased defendants to thepetitioners;that the petitioners were not aware of these details and therefore,they could not mention the specific dates of death of these individuals. It isalso stated that since there is no time limit to file an application to pass afinal decree in a suit for partition, in the application filed to pass a finaldecree, the petitioners are entitled to state that these persons have died andtheir legal representatives be brought on record by condoning the delay, if any,in filing applications to set aside the abatement. He also contended that allprocedure is a hand-maid of justice and the mere fact that separate applicationsin respect of each of the deceased respondents are not filed, it is not open tothe trial court to dismiss the application for passing final decree under underOrder XX Rule 18 CPC.
13. On the other hand, the counsel for 3rd respondent supported the decision of
the trial court. He contended that without the dates of death of the deceased
respondents being mentioned, the I.A 493/2003 cannot be entertained.
14. I have noted the submissions of the parties.
15. It is not disputed that the SA.No.174 of 1998 is filed by3rd respondent in this Court and it was dismissed on 18.09.2000. When the 3rdrespondent/3rd defendant had filed SA.No.174 of 1998 in this Court , and thepetitioners had not filed it, the trial court cannot blame the petitioners fornot taking steps to bring on record the legal representatives of the deceasedrespondents in that Second Appeal.
16. The Court below also mentioned that the dates of death of the deceased were
not given by the petitioners. When parties to a suit die, under Order XXII Rule10A of CPC, it is incumbent on the counsel appearing for that party to furnishdetails of the date of death and the details of the legal representatives alongwith their addresses to the plaintiff in the suit (See Gangadhar v.Rajkumar1).
Admittedly, this has not been done. When none of the respondents furnished the
date of death to the petitioners, to expect the petitioners to give the exact
date of death of the respondent Nos.4, 5 and 6 is perverse. A party cannot be
compelled to give information which he did not know. So this finding of the
trial court also cannot be sustained.
17. Once a preliminary decree is passed, the shares of the parties to the suit
are determined. What remains to be done is the division of property by metes
and bounds. As per law, admittedly, there is no time limit fixed for filing an
application to pass a final decree in a suit for partition (See Shub Karan Bubna
v. Sita Saran Bubna2). Therefore, the mere fact that the application for final
decree is filed in 2003 cannot be held against the petitioners.
18. It is pertinent to note that the death of the above parties occurred after
the passing of the preliminary decree. The question is whether there is any
abatement of the suit on account of death of a party to the suit after passing
of the preliminary decree but before passing of final decree.

19. This Court in S. Mohan Reddy v. P. Chinnaswamy3 held :
"3. It is well-established proposition of law that a suit cannot be dismissedon ground of abatement after a preliminary decree was passed for thereby rightsare accrued to one party and liabilities are incurred by the other : videLachiminarayan vs. Balmadund4. It was observed therein:'After a decree has once been made in a suit, the suit cannot bedismissed unless the decree is reversed on appeal. The parties have on themaking of the decree acquired rights or incurred liabilities which are fixedunless or until the decree is varied or set aside.' After a decree, any party can apply to have it enforced. As such, thesuit does not abate under Or.22 Rules 1, 3 and 4 CPC after a preliminary decreeis passed. But, it is equally a general principle of law that a decree cannotbe passed in favour of or against a dead person."
... ... ...
6. As I already observed, a suit cannot be dismissed except on appeal or by
review after a preliminary decree is passed. It follows that there cannot beabatement of the suit even if the L.Rs. of the deceased party are not brought onrecord during the final decree proceedings. But, even a final decree cannot bepassed for or against a dead person. So, it is necessary to bring on record theL.Rs. of the deceased before a final decree is passed. It has to be seen as towhat provision is applicable when O.22 Rules 1, 3 and 4 are not applicable incase of death of parties during the final decree proceedings.7. Order 22 Rule 10 CPC lays down that in cases of an assignment, creation ordevolution of any interest other than the cases referred to in remaining Rulesof or.22, the suit may by leave of the Court, be continued by or against theperson to or upon whom such interest has come or devolved.When Or.22 Rules 3or 4 is not applicable in cases of death during the final decree proceedings,one has to invoke Or.22 Rule 10 CPC to bring the L.Rs. on record. Ramsewak vs.
Mt. Deorathi5 lends support to the said proposition." (emphasis supplied)

20. In T. Mangaraju v. K. Ganamma6, this Court held :"Once preliminary decree is passed it cannot be said that the cause of actiondies along with the person nor dies it require that the LRs. should claim thecause of action by being brought on record within the period of limitationprescribed. In other words on account of the passing of the preliminary decreethe right stands recognised by the Court. All that is required is that thefinal decree proceedings should be taken up at the instance of the partyclaiming and in that view there is no question of any abatement nor does itrequire that the abatement be set aside. The provision of Order 22 Rule 3 and 4does not apply to a case where the holders dies after passing a preliminarydecree."(emphasis supplied)
21. In Valluri Sambasivarao v. Motamari Veeraiah Gupta7, this Court reiterated :"22. ... ... ... it is clear that by passing of preliminary decree, the rightsof the parties stand recognized and determined by the Court and the only thingthat is left is passing of the final decree. Therefore after passing of apreliminary decree if the plaintiff dies, since no final decree can be passed ona dead person, it is essential to permit his legal representatives to come onrecord. Hence, after such determination and recognition of rights, if theplaintiff dies, there is no question of any abatement and the suit cannot bedismissed on the ground of abatement, after passing of a preliminary decree,except in an appeal or in a revision." (emphasis supplied)
22. In view of the above legal position, I am of the opinion that Order XXIIRule 3 and 4 have no application to the present case as preliminary decree inthe suit was passed in 1984 and the death of respondent Nos.4, 5 and 6 tookplace subsequently in 1997, 1999 and 2001, respectively. Thus there can be noabatement of the suit on account of the death of the defendants 4-6 afterpassing of the preliminary decree. So there was no necessity for the petitionersto file petitions for condonation of delay in seeking to set aside abatement andto set aside abatement. So the order of the court below holding that they shouldhave filed such applications and explained day to day delay in respect of eachof the deceased defendants is contrary to law and unsustainable.
23. The purpose of filing a final decree petition is to ensure that a
Commissioner is appointed to divide the property by metes and bounds and to
determine profits, if any, awarded in the preliminary decree. The petitioners
intended that all the affected parties be informed of the final decree
proceedings so that they may not suffer and the final decree is not passed
behind their back. Admittedly, all the legal representatives of the deceased
respondents 4-6 were shown as respondents in the final decree petition IA.No.493
of 2003. In my opinion, it would merely suffice if they impleaded the legal
representatives of the deceased respondents 4-6 in it, which they did. No
exception can be taken to this.
24. It is most unfortunate that the trial court ignored the settled legalposition and dismissed the I.A 493/2003 for passing final decree on untenablegrounds and in a perverse manner. Such orders are likely to cause the parties tolose faith in the institution of Judiciary itself.25. Even the conduct of the 3rd respondent is to be deprecated. Admittedly sheis not the legal heir of any of the deceased respondents and is not prejudicedin any manner, if the petitions for condonation of delay in filing theapplications to set aside abatement and to set aside the abatement (assuming forthe sake of argument that as per law they should be filed), are not filed bypetitioners. By raising these untenable technical pleas she has managed to enjoythe plaint schedule properties from 1984 till this day.26. Therefore, the impugned order dt.29.12.2005 in IA.No.493 of 2003 inOS.No.02 of 1984 passed by the Court of Senior Civil Judge, Medak, Medak District is set aside. IA.No.493 of 2003 is restored to the file of the Sr.Civil Judge, Medak. The said court shall issue notices to all the respondentsand take steps to do the needful to pass a final decree in the suit. The CivilRevision Petition No.4557 of 2007 is allowed with costs of Rs.5000/- to be paidby 3rd respondent to petitioners.27. Miscellaneous applications pending, if any, shall stand closed.
___________________________________
JUSTICE M.S. RAMACHANDRA RAO
Date :13-11-2013

The Hon’ble Sri Justice B.Chandra Kumar Appeal Suit No.144 of 2012 Dated 9th August, 2012Judgment: The appellant filed this appeal challenging Order, dated27-01-2012, passed by the learned Senior Civil Judge, Darsi, in CFR.No.90 of 2012, refusing to register the suit filed by him on the ground that the same is barred by limitation . The plaintiff filed the suit for specific performance basing on agreement of sale, dated 13-11-2008. As per the terms and conditions of the agreement of sale, the balance amount of Rs.4 lakhs out of the total sale price of Rs.9 lakhs was to be paid within two months from the date of expiry of the limitation of the said agreement of sale. The case of the appellant is that though he had been requesting the respondent to receive the balance sale consideration and register the sale deed in his favour, the respondent did not come forward; that therefore, he got issued a legal notice to the respondent on12-10-2011; that the respondent acknowled…

Or.18, rule 17 and sec.151 C.P.C - petition filed for reopen and examination of the executant of Ex.A1 the sale deed to fill up the lacuna in evidence pointed out at the time of arguments not maintainable =in VadirajNaggappa Vernekar (deceased by L.Rs) v. Sharad Chand Prabhakar Gogate (supra), it is held as follows: "17. It is now well settled that the power to recall any witness underOrder 18 Rule 17 CPC can be exercised by the Court either on its own motion oron an application filed by any of the parties to the suit, but as indicatedhereinabove, such power is to be invoked not to fill up the lacunae in theevidence of the witness which has already been recorded but to clear anyambiguity that may have arisen during the course of his examination. Of course,if the evidence on re-examination of a witness has a bearing on the ultimatedecision of the suit, it is always within the discretion of the Trial Court topermit recall of such a witness for re-examination-in-chief with permis…

The 1st respondent herein filed O.S.No.101 of 2011 in the Court of III
Additional District Judge, Tirupati against the appellants and respondents 2 to
5 herein, for the relief of perpetual injunction in respect of the suit schedule
property, a hotel at Srikalahasti, Chittoor District. He pleaded that the land
on which the hotel was constructed was owned by the appellants and respondents 2
and 3, and his wife by name Saroja, and all of them gave the property on lease
to M/s. Swarna Restaurant Private Limited, 4th respondent herein, under a
document …